“Oh give me land, lots of lands, and the starry skies above. Don’t fence me in…”

The Humane Society of the United States, Mercy for Animals, and Farm Sanctuary are getting the U.S. District Court for Central California to review their plan for combatting bird flu. It involves lots of land.

The USDA’s Animal and Plant Health Inspection Service (APHIS) and Veterinary Services moved to dismiss the bird flue lawsuit filed a year ago. That does not mean the plaintiffs have won, but it does mean they will get their plan reviewed by the judge.

They claim that APHIS rewards so-called “factory farms” that hold birds too closely together in battery-like cages that contribute to the spread of the virus when outbreaks do occur.

The HSUS favors incentives for producers to give their animals room to move as they would in nature, and with the other plaintiffs, they claim their plan would reduce the risk of the spread of disease.

The “statutory context” for the lawsuit involves the National Environmental Policy Act (NEPA) and the Animal Health Protection Act (AHPA). Specifically, USDA action rests on the December 2015 Final Environmental Assessment, High Pathogenicity Avian Influenza Control in Commercial Poultry Operations.

AHPA empowers the Secretary of Agriculture “to hold, seize, quarantine, treat, destroy, dispose of or take other remedial action” if dead poultry was moving in interstate commerce. The law also permits the secretary to indemnify owners of destroyed animals.

APHIS has two responses to outbreaks of highly pathogenic Avian flu — the first is to take no action when state and local authorities can handle it. 

When help is needed, APHIS has an “adaptive management program” for assisting state and local authorities with quarantines and flu control activities.

The USDA said the plaintiffs lacked standing and the court lacked subject matter jurisdiction, often reasons for getting lawsuits tossed. However, in denying the motion to dismiss, the plaintiffs were found to have standing and the court jurisdiction.

The plaintiffs are not the only ones with bird flu plans. The federal Centers for Disease Control and Prevention (CDC), for example, recently published guidance on how infected backyard poultry could easily spread bird flu to people.

The CDC warns that bird flu infections can occur without touching poultry. Touching the virus and then touching the eyes, nose, or mouth can transfer the virus. Backyard flock outbreaks, usually Salmonella, have become commonplace.   

Backyard chickens are not usually kept in battery-like cages but can spread pathogens by flapping their wings, scratching, and shaking their heads.

“Bird flu infections in people are rare, but possible,” according to CDC.

Most reported bird flu infections in people have happened after unprotected contact with infected birds or contaminated surfaces.

The CDC says wild waterbirds such as ducks and geese, can be infected with flu viruses but usually do not get sick. Outbreaks of bird flu in birds happen from time to time. The risk to human health depends on how close or how long people have contact with infected birds.

APHIS reports that in December 2014, highly pathogenic avian influenza (HPAI) was detected in the United States for the first time in 10 years.

From Dec. 11, 2014, to Jan. 16, 2015, USDA received a total of seven reports of HPAI H5N2 or H5N8 in captive wild birds and backyard flocks from the northwestern United States. Additional detections occurred in wild birds. The first infected commercial flock was identified on Jan. 23, 2015, in California.

From January to March, the disease spread slowly to multiple states, including Minnesota, Missouri, Arkansas and Kansas. A significant increase in HPAI H5N2 in turkey flocks occurred through early April in Minnesota, followed by a rapid increase in Iowa in late April and throughout May, where large numbers of chicken layer flocks were affected. The last case of HPAI was confirmed, in a commercial flock, on June 16, 2015.

During the 2014-2015 outbreak, APHIS reported a total of  211 detections on commercial operations and 21 detections on backyard premises, including those premises designated as Dangerous Contact Premises. HPAI was detected in commercial premises, backyard flocks, wild captive birds, and/or wild birds in 21 states: Arkansas, California, Iowa, Idaho, Indiana, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, North Dakota, Nebraska, New Mexico, Nevada, Oregon, South Dakota, Utah, Washington, Wisconsin and Wyoming.

About 7.4 million turkeys and 43 million egg-layers/pullet chickens, as well as a limited number of mixed poultry flocks, were affected by HPAI and died from the disease or were depopulated as part of the response. This outbreak was the largest HPAI outbreak ever recorded in the United States and arguably the most significant animal health event in U.S. history.

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